February 29, 2008

EPA Comes Clean on Climate

Lisa Heinzerling

Today EPA Administrator Stephen Johnson finally explained his decision, announced last December, to deny California's request for permission to implement its standards regulating greenhouse gas emissions from cars. In a 48-page document, Johnson stated that EPA could not receive a "waiver" for its program under the Clean Air Act because the state does not have the kind of "compelling and extraordinary conditions" that make such a waiver appropriate.

But here is the kicker: Johnson concluded that California's problems aren't "compelling and extraordinary" because they're no worse than the very bad problems the rest of the country faces as a result of climate change. Thus, in the course of denying California's waiver, EPA managed to make explicit, for the first time, its view that greenhouse gases endanger public health and welfare. Johnson's discussion of greenhouse gases and climate change now obligates him to regulate these pollutants under the Clean Air Act.

The Clean Air Act directs EPA to regulate numerous sources of air pollution -- cars, power plants, factories, planes, and more -- once the EPA Administrator makes a finding that an air pollutant "may reasonably be anticipated to endanger public health or welfare." In Massachusettsv. EPA, the Supreme Court explicitly held that regulation under the Clean Air Act must follow once the EPA Administrator makes such an "endangerment finding."

In 1999, several groups, led by the International Center for Technology Assessment, asked EPA to regulate greenhouse gases from automobiles. They asserted that the science of climate change, even at that time, dictated a finding of endangerment. In 2003, EPA rejected the petition, stating that it had no authority under the Clean Air Act to regulate greenhouse gases and that even if it had such authority it would decline to exercise it due, among other things, to the scientific uncertainty surrounding the issue. In April of last year, in Massachusetts v. EPA, the Supreme Court reversed EPA's decision. After holding that EPA did indeed have the power to reuglate greenhouse gases and that its reasons for declining to do so were unlawful, the Court directed the agency to take another look at the issues and to explain its ultimate decision in terms of the statutory criteria and the available science. We've been waiting almost a year for an answer from EPA.

It came today, albeit in an unlikely context. Superficially, today's decision looks like a huge loss not only for California but for all of the other states that have adopted California's emissions standards; together these states represent almost half of the U.S. population. The rejection of California's waiver denies all of these states -- and their citizens -- the right to enact a climate change program for automobiles, a leading source of greenhouse gases.

But that is not all EPA's decision does. The decision also contains a long discussion of the effect of greenhouse gases on climate and the effect of climate change on public health and welfare. The EPA Administration states that "warming of the climate system is unequivocal." He connects this warming to manmade greenhouse gases and describes the consequences of global warming for human health and welfare, to wit: "There is strong evidence that global sea level gradually rose in the 20th century and is currently rising at an increased rate"; "by the end of the century, globally averaged sea level is projected to rise between 0.18 and 0.59 meters relative to around 1990"; "it is very likely that heat waves will become more intense, more frequent, and longer lasting"; "it is likely that hurricanes will become more intense"; "wildfire and insect oubreaks are increasing and are likely to intensify."

These statements demonstrate that the Administrator has found that greenhouse gases are endangering public health and welfare. For one thing, the Administrator does not equivocate about existing problems relating to climate change or about the possibility of future harms. His findings -- including words such as "unequivocal" and "likely" -- easily meet the Clean Air Act's standard of reasonable anticipation of endangerment. Indeed, his decision contains numerous examples of how greenhouse gases are already harming public health and welfare. In addition, the Administrator's description of the consequences of climate change relate directly to the key Clean Air Act concepts of public health and welfare. Floods, droughts, hurricanes, wildfires, and the rest all clearly implicate health and welfare. Thus, the decision amounts to a finding of endangerment that triggers mandatory regulatory action under numerous provisions of the Clean Air Act.

In his decision, Administrator Johnson says that he is not making an endangerment finding. But Johnson cannot so easily avoid the consequences of his own conclusions. Settled law makes clear that formal factual findings like those made in Johnson's decision constitute an endangerment finding under the Clean Air Act, no matter how the agency labels them.

After too many years of denial and avoidance, EPA has finally said something true and right about climate change. It is too bad that it comes in the midst of a palpably unlawful decision preventing California and other states from regulating greenhouse gas emissions from cars. But the decision denying the waiver will be reversed; there is no legal basis for it. The endangerment finding, on the other hand, has real staying power.